Proposal to Revamp Court of Appeals Judge Elections Faces Scrutiny

PHOENIX — The Goldwater Institute’s attempt to alter the selection process of judges on the Court of Appeals met with strong skepticism from Maricopa County Superior Court Judge Frank Moskowitz on Monday.

Judge Moskowitz conceded that the current system restricts voting to residents of specific counties for appellate judges, all appointed by the governor. He noted, however, that this does not disenfranchise residents of other counties since appellate rulings have statewide implications.

Moskowitz emphasized that his judgment in this case, though rendered as a judge elected by Maricopa County residents, carries statewide impact, affecting the names on the Nov. 5 ballot statewide unless appealed.

Andrew Gould, representing the Goldwater Institute, argued that Moskowitz has the authority to order Secretary of State Adrian Fontes to include the names of all appellate judges on ballots in all counties. However, Assistant Attorney General Emma Mark, defending the status quo, accused Goldwater of attempting to achieve through the courts what their Republican allies at the Legislature could not.

Moskowitz expressed a tentative inclination to dismiss Goldwater’s claim but refrained from making a final judgment. Gould indicated that the case would likely proceed to the Supreme Court.

A swift resolution is vital as counties need to determine ballot content by the third week of August. The issue centers on the governor-appointed appellate judges who must stand for reelection every six years in a complex voting system divided into two divisions.

Residents of counties within Division II, such as Pima and its adjacent counties, can vote only on judges from their respective counties. A similar setup exists in Division I, with Maricopa residents voting on judges from their county, while residents in other counties within the division vote on judges from their locales.

Gould argued before Moskowitz that this system disenfranchises voters as they cannot vote against judges who have a statewide ruling impact. Conversely, every Arizonan votes on the retention of justices of the Arizona Supreme Court.

Mark countered that this point is legally irrelevant, asserting that judges serve people rather than represent them. Moskowitz also critiqued Gould’s argument, highlighting that the Supreme Court can call back retired judges, who are also not elected for retention, to hear cases.

Moskowitz added that superior court judges could be reassigned across counties, undermining the premise of Goldwater’s argument. He referenced a 2022 election lawsuit in Cochise County heard by a Pima County judge as an example.

This case is not Goldwater’s first attempt to overhaul the judicial selection system. A Republican-sponsored 2023 legislative proposal backed by Goldwater, which mandates statewide retention elections for Court of Appeals judges, was vetoed by Governor Katie Hobbs. Hobbs argued that the proposed changes would dilute the votes of those most affected by each division’s judges.

Mark contended that the lawsuit sought to achieve judicially what was not accomplished legislatively. Moskowitz acknowledged this and voiced that even siding with Goldwater would only invalidate the current system without establishing a new one, a responsibility he deemed belonged to the Legislature.

The judge pledged to expedite his ruling to meet the looming ballot printing deadlines.